There are two questions that I have asked repeatedly in this debate about same-sex marriage (which has spanned several threads) which have gone unanswered or have been avoided. For some reason, when these questions have been asked, those opposed to same-sex marriage either ignore the question in their answers or disappear completely. I hope, since it's been narrowed down to this, to cut to the chase and deal with these questions:

Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?

If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unableto procreate? If so, why?

I'll stumble in here where angels seem fearful to tread, ignorant of recent developments, just so I can see how big a fool I am.

I suspect many exist, but one which comes to mind is the obligation/benefit of passing along a family's generational narrative. While an adopted child might be curious about his parents' ancestory, the process of handing down from "generation to generation" becomes far more personal when the child actually is the biological offspring.

Such discussions also are important for parent and child alike if they involve such things as family medical histories. One might also argue that this increased sense of "belonging" — to whatever degree it exists — helps knit together a society in which members are more likely to share common ideals.

I'm going to dodge this slightly by questioning the ability of the government in the first place to ever know whether a heterosexual couple can or can't procreate. Even with modern medicine, I think there's an assumption that one can never say never. (That becomes even more pronounced in areas where "modern medicine" is substantially less modern). A few exceptions exist, but it's possible those can't be applied as a broad rule.

The same can't said for a homosexual couple. Therefore, it seems likely there is no apples-to-apples comparison on this question.

This may be a benefit of procreation, but it isn't a benefit of marriage. The question is about the benefits and obligations in civil marriage.



But the government does know that some couples are unable to procreate. In a couple of states the government requires a couple to be sterile before allowing them to marry. You are required to put your age on the marriage application... a couple of 90 year olds are not going to be able to procreate, yet they are allowed to marry. These are two examples of couples that the government knows can't procreate, but it still allows them to marry. With this in mind, will you try the question again?

I think that depends what the narrative is. If, for example, it includes shared tales about how the little girl or little boy comes from a long line of mommies and daddies who’ve always stayed true to each other and always remained married, then that narrative requires (a) procreation; and ( marriage. And a homosexual couple would not be able to duplicate that.


As I said, there may be a few examples, but that doesn't constitute the broad ruling needed to equate it with barring all gays from marrying based on the fact zero-percent of their marriages involve procreation. I think the premise you're discussing is based on a general supposition rather than on determining individual fertility.

In fact, if one really wanted to argue, he could claim that even the two examples cited are not medical impossibilities. If I had to guess I would say some supposedly “sterile” couples actually prove to be fertile.

Nor is there any “guaranteed” age at which couples CAN’T have children anymore. We now have a documented case of a 66-year-old Romanian woman (true, it was by in vitro, but it goes to show it’s medically possible). Therefore, it would be somewhat rash to say two 90-year-olds “can’t” procreate. It would break the current record but it would not violate any law of biology.

I don't believe that there should be a stipulation about procreation, as some couples never have children (no... we don't have kids yet, but plan to!) and are perfectly happy couples.

I think that America's objection to gay marriage is the social unacceptability of homosexuality. It's pretty obvious that homosexuality is only openly accepted in certain circles of our society. Marriage is something held in high esteem for some in the United States, even though the divorce rate wouldn't ever be an indicator! Consider the cost and elaborateness of our weddings, and what a multi-billion dollar industry it has become. For some women, this is the highlight of their lives, and for two men to share this ceremony somehow takes away from the event.

The frank reality is that Americans tend to be intolerant of those who don't fit into the natural flow of our culture, for instance maybe those with a large number of piercings or tatoos. This is true for homosexuals. It's obvious that our bodies weren't built to accomodate sexual gratification of the same sex, nor procreation by the same sex. I believe this is the backbone of the American apprehension to accept homosexuality. The notion of sexual acts with someone of the same gender often causes sincere negative feelings, and for many Americans it's surely not a warm and fuzzy feeling.

Is it right? Who knows. Who cares really? I believe that the Baby-Boomer generation and a large portion of Generation X still posess some trepidation to the notion. Some use the procreation crux to mask the idea that they just don't feel comfortable with it. Maybe it's our Judeo-Christian history, maybe it's just our "cowboy/American" nature. It's not important. I really just can't wait to see how the Democrats play this card in the next election, as it's bound to arise.

To answer the questions directly, I don't believe that it has anything to do with procreation, but moreover American society's overwhelming feeling that homosexuality is still wrong.

Hmmm...interesting idea but doesn't your hypothesis assume that the critical part of that narrative is the gender of the family members and not the commitment/lineage? That is, why couldn't a homosexual couple also raise a child with a tradition of stable families and proud lineage? Granted, there might not be a biological connection between child and grandparents (although with sperm donorship and artificial insemination, it is possible), but the same would be said of a child adopted by a heterosexual couple yet no one suggests that such a child couldn't be raised with a sense of lineage and tradition. It seems that your central narrative is one of "you are part of a strong, committed family which is both supportive and expanding. We hope you will someday contribute to that family as well". There is nothing in that narrative that is dependant upon the child being born of the parents vs adopted (or the result of a previous coupling, etc).

Just my thoughts...



Here again, using your own logic (elderly or supposedly sterile couples can still procreate), couldn't the same be said of a homosexual couple? A homosexual male can still father children, a homosexual woman can still give birth. Granted, each would need the help of outside parties (science or donors) but so do the theoretical sterile or elderly couples in your example.

Again, just my thoughts.

Where angels fear to tread... good one fontbleau.

Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?

I believe I have answered this, however it was rejected as not really a pertinent answer.

The main societal benefit of marriage is the creation of an environment where children can be raised safely, lovingly, and with a modicum of normalcy. That is not to say that children cannot be raised successfully in other environments or that there are not other benefits of marriage to either society or the participants. However, marriage is the time proven method which works best.

Moving to the same sex marriage concept, we can see that by definition any children raised within such a relationship are not the products of the two people involved. It is, in fact, physically impossible that the child belong to both of them biologically. So what we have there is an more akin to an adoption or foster care relationship to one or the other of the partners. This is not the same scenario as a child living with his or her biological parents who are married (the ideal).

This is the age old conundrum: should we strive for the ideal or should we settle for something less than the ideal? In the second question you explore apparent discrimination--heterosexual non-procreators getting married. You might as well include heterosexual couples that adopt the other partner's children or hetero couples that adopt kids from outside the relationship. Why allow those relationships with children at all?

The answer to this question, as well as the one posed for debate is that it is beneficial to encourage normalcy. What is a normal relationship between children and their biological parents? What type of relationship has social benefits to society as well as benefits for the participants? The answer is that the biological parents of the child are married to each other.

Study after study shows that children of married couples are less poor, more well-adjusted, fit in with their peer groups better, and are less prone to crime or other detrimental activities--such as drug use or teen pregnancy.

Couples, particularly men, stay in marriage relationships longer than simple cohabitation relationships because of the increased level of commitment required and expected. Marriages create larger social networks for support through difficult times. Married people are substantially happier, as a whole, than people in less committed relationships. They have less emotional problems, are healthier physically, and live longer. [Coombs, R. H. (1991). Marital status and personal well-being: A literature review. Family Relations, 40, 97-102. ] See also: WHY MARRIAGE IS BETTER!

So it seems obvious that we should encourage marriage, both for the people themselves, their children, and society.

Now, onto the sticky question: why exclude other groups from this important relationship?

We must examine what it is about the marriage relationship that makes it superior to co-habitating or living single. Is it simply the level of commitment? Is it financial? Is it because of societal expectations?

The fact remains that marriage brings benefits other than stable family environments for children. Advocates of same sex marriage point to these benefits and ask why they should be excluded. My position (the conservative one) is that we shouldn't mess with what's been working. Changing the definition of the participants of marriage is almost certain to change the outcomes associated.

Disocciating marriage from child rearing, as is implicit in the same sex marriage debate, removes the chief societal benefit of marriage: stable families who rear stable kids. This dissociation is visible in the Netherlands, where partnerships have been legal for 10 years and same sex marriage for 6. Out of wedlock births have increased dramatically there in the last 10 years. Going Dutch? and The Netherlands shows the effect of same-sex marriage.

If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unable to procreate? If so, why?

As I have said, marriage has many benefits but so do other licensed activities such as driving. If I said that the government allows people to drive starting at age 16 because it is safe to do so (let's say that 15 year olds are too dangerous as drivers) should saying that 95 year olds are dangerous drivers allow us to let 15 year olds drive? If I argue that it is in the government's interest to allow working age people to drive (16 and up) because it helps the economy, would you then point to the unemployed and say: why let them drive? It is a ridiculous point. The government can only deal in these issues by allowing generalities and excluding exceptions (the blind, for instance). It can't work very well the other way around.

So should two alcoholics be allowed to marry? That's obviously not going to be a safe, stable environment for any offspring. Or what about if one of the parents has a history of drug use or been convicted of mental or physical abuse? How does allowing someone who fits into one of the above groups to marry "encourage normalcy"?

Do we test for alcoholism upon issuing marriage licenses? Last time I checked, we didn't.

Of course you could name a thousand examples of potential bad cases. Maybe a detailed personality test should be administered to marriage license candidates. Don't score high enough on the 29 facets of compatibility--too bad!!

Don't complicate the issue by throwing out red herrings.

Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?

Yes. Let's start with a basic fact: Gender is relevant in human society. Highly relevant. It's perfectly obvious from the way men and women, boys and girls, all interact with each other. Just to take an immediate example, it's still highly unusual for a man to be seen wearing a dress. It's impossible to detail all the ways in which the sexes are different from each other from a societal perspective, because it's all so tightly woven into the way our society is - indeed, the way all societies are. So to just assume that there's no real benefit to a children being brought up by both a mother and a father is to engage in the most blind wishful thinking. Even for the few children who may not have that opportunity, the fact that it's the norm in society means that they at least will have plenty of positive examples around them to help make up for the lack. But if you change the norm itself, you can't pretend that it won't have profound consequences for society.

If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unableto procreate? If so, why?

Yes again. It's a waste of the government's time to contantly fret about which opposite-sex couple is and is not able to procreate. Our society has decided (wisely, in my view) that it's enough to simply make marriage a generally-available option to opposite-sex couples, with as few roadblocks as possible, and you'll get enough of a yield who'll provide for stable families (even if it wasn't necessarily their intention when they got married). That does not necessitate extending the privilege to people who by their own sexual nature (i.e., being of the same sex) can not possibly reproduce.

But it is NOT a red herring here dude- those two questions are the main reason that the anti-gay marriage types through out there "for the children"-

IF marriage was truly "for the children"- we would be regulating who had kids in the first place, wouldn't we?

Bottom line is this- there is NO RATIONAL reason to be anti-gay marriage- it is the "eww" factor- and these two questions go to the heart of the entire debate, which very quickly falls apart for the anti-gay marriage types.

Good poll BTW

I am not going to go too deep into this topic because it has been debated tirelessly on these boards (check the 10 most replied topics in AD's history) so my post will be brief. My views on homosexual marriage have changed since my first time on these boards. I still think that homosexual marriage is wrong, not for religious reasons, but for just logical ones. First, homosexuals can't procreate and even if heterosexual couples have only a 0.000000001% chance, thats better than zero. Second, just because the Supreme Court holds marriage as a human right, that doesn't make it so. Marriage is traditionally a religious ceremony and was adopted by government for practical reasons such as taxes and the construction of the family. The state has an interest in such endeavors but nobody has come up with what interest the government has in granting homosexual marriages. If two same sex people want to live together forever, what exactly is stopping them? Its not like the government is preventing people from assembling together, its just not recognizing the marriage of same sex couples as conducive to the goals of our society.

But in the end, I realize that if same sex couples were allowed to marry that it wouldn't really affect my life and thus, I wouldn't really care if it was legalized. However, most people on the left just don't get it. When they start recognizing my right to light a cigarette, eat a cheeseburger, carry a gun, and tell an insensitive joke...then maybe ill start caring about their "rights".

Leder.

To an extent I agree with you. Despite the volume, in terms of decibels and quantity, on the subject on this board, I haven't gotten involved deeply in these debates. I can't see how marriage between two gay people impacts my life - period. I take a laissez faire position on some things - this is one of them.

I would quibble a little with some of the rights you list. Light all the cigarettes you want, just don't do it in an enclosed area where other people have to inhale your smoke. In Texas people can carry a concealed weapons. I don't by choice. I'm not sure what you mean by insensitive jokes - dirty, racial, religious? If you do this in private, no one will know. If you do it in public, the consequence may be getting into a fist fight or worse. If you are a public official, like Nixon's Agriculture Secretary, Earl Butz, then you run the risk of career termination. Personally, I prefer humor and stories to jokes.

http://www.answers.com/topic/earl-butz

Oh, be my guest. Have all the cheeseburgers you want.

Just to humor you a little, dig this:

http://www.seeklyrics.com/lyrics/Jimmy-Buf...n-Paradise.html

But of course you aren't legally prohibited from eating a cheeseburger or telling an insensitive joke. As for lighting a cigarette, since secondhand smoke has been proven to cause cancer, it is considered a health risk to others. I have no objections (and I'm an outright advocate of people's right to smoke), but smoking contains the risk of harming unwilling participants. So does a gun, really. It may be used for your protection, but there's that risk of you accidentally shooting the wrong person.

Those who protest gay marriage tend to hold an opinion that marriage has never changed--in our own country's history, it has just in the past fifty years. Since the Supreme Court has ruled marriage a right (arguing otherwise is simply wishful thinking), it is legally obvious that a right may not be prohibited based on the gender of the individual(s). It would seem a rather clear cut case here--gender, like race, is protected by our Constitution. To ban same-sex marriage is an affront to the equal protection clause.

But like lederuvdapac has said, this has been argued so frequently over the last few years. A same-sex couple should be granted the rights of marriage without having to jump through a thousand legal hoops to get the same basic benefits (wills, insurances, estates, custody, etc.).

Wait a minute - you're saying that current law is discrimination on the basis of gender? Exactly which gender is being discriminated against?

Both of those practical reasons are applicable to same-sex marriage. Homosexuals pay taxes last time I checked and the benefits to society of people living in committed stable relationships don't suddenly vanish when it's two people of the same sex. Moreover there is no practical reason the government shouldn't allow same-sex marriage. Unless same-sex marriage would adversely effect people keeping it illegal doesn't make much sense. I can't think of any adverse effect of gay marriage aside from the theory that legalizing it would be crossing a tipping point in the public perception of marriage thus making the entire country into a free love, hippy, jam fest, drum circle, poetry slam where children are unable to be taught moral values and become Godless, depraved, green peace, liberal theater critics who hate America and everything it stands for. But seriously, I think people are missing that the only critical component to these relationships gay or straight is mutual love between two people, obligations and pressing government interest aside.

It's true people who are very liberal can be sanctimonious moralizers but two wrongs doesn't make a right. If you think other people should mind their own business when they have different tastes in foods, weapons, and humor perhaps you should tolerate their taste in whom they want to marry.

fontbleau,



Perhaps there needs to be a clarification of the question. The marriage contract regulated by the government grants certain benefits and imposes certain obligations. The only obligation in the marriage contract that deals exclusively with procreation is assumed paternity. Now, I have been told that there are many obligations in the marriage contract that deal exclusively with procreation. What are they?



Okay, being that marriage is a fundamental right in this country, the few examples are all that is needed for an exclusion based on procreation to be considered unconstitutional. Constitutional law dictates that a law that creates an exclusion involving a fundamental right must meet a particular standard in order to be constitutional. The exclusion must be related to a valid State interest and the exclusion must be necessary in order to further that interest.

Even though a sterilization process may not take, the government in mandating sterilization has the expectation that the couple is sterile. How can the government claim that the exclusion of same-sex couples from the right to marry is necessary in order to further the valid State interest in procreation if it expects certain couples to be unable to procreate before allowing them to marry? Mandating sterilization points to the fact that the government does not feel it is necessary to exclude couples based on an inability to procreate.

Also, in the case of the elderly, there is not a single clinic in this country that will knowingly perform an IVF procedure on a woman beyond her 50's. I defy you to find me a single clinic in this country that is willing to do so. They certainly won't perform the procedure on a 90 year old woman. So, here again, it is reasonable to assume that all 90 year old couples will be unable to procreate. Yet the government will allow two 90 year olds to marry despite knowing their age and their inability to procreate.

So, with both of these examples illustrate that the government does not believe it is necessary to exclude couples from the right to marry because that couple is unable to procreate. Bans using this State interest as the reasoning behind them fail the standard of review and are unconstitutional.

Is that clearer, fountbleau? Do you have a rebuttal?

aevans176,


Well, that's all well and good, but if this was a legally valid reason, we would not have interracial marriage. The majority opposed interracial marriage (I mean, the ban came through the legislature, right?) Many felt that it was socially unacceptable to have sex with a person of a different color (particularly men of a different color). They felt that it was socially unacceptable to marry an individual of a different color. This, in the end, meant nothing when it came to the Constitution.

The fact is, the State does not consider homosexuality to be socially unacceptable. It it was socially unacceptable, there would be a law against it... in fact, there were laws against it, but these have been removed. So, regardless of how "America" objects, the State can't exclude same-sex couples from the right to marry because homosexuality is considered socially unacceptable by the majority of Americans.

Amlord,



I agree that this is a societal benefit of marriage, but it is not one of the benefits granted by the government in it's regulation of the marriage contract. This may be why the answer was not pertinent. The question asked deals with the marriage contract.



This is ridiculous. There is absolutely no evidence to show that marriage provides a more ideal environment for biological parenting as compared to adoptive parenting. Marriage is the ideal environment in which to raise children, yes, but it is the ideal environment to raise children who have been adopted as well as those present in the marriage because of procreation. The government's aim is to provide an ideal environment in which to start a family and in which to raise children should the couple choose to do so. If you look at the laws associated with the marriage contract that is what you get.



Okay, so children of married couples are better off. Brilliant! Genius! If I didn't believe that, I wouldn't be arguing that same-sex couples with children should be allowed to marry.



Ah, the boogeyman. The monster under the bed. But you can't say for sure can you? And if you want to talk about changing definitions for the participants of marriage, who started changing the State's definition of marriage? Heterosexuals starting in the '70s. They were changed to explicitly exclude same-sex couples, which brings up the constitutional question of why is it necessary? You can't exclude a couple from a fundamental right because something bad might happen. Something bad might happen if you allow a particular heterosexual couple to marry (see the acoholic example.)



Oh, my God, it's Netherlands arguments again?! How many times do I and others have to debunk Stanley Kurtz's argument before you will actually take a serious look at it?

The Netherlands, in addition to allowing gay marriage (as of 2001) allows registered partnerships for both same-sex couples and opposite sex couples. So, more people are procreating outside of marriage? Really? Could it be that more opposite sex couples are procreating in registered partnerships and, therefore, more children are being born out of wedlock?

This does not occur when you simply allow same-sex couples to marry. The only choice remains the ideal choice... marriage. If you allow civil unions, registered partnerships and the like, you diminish marriage as the ideal.

So, please stop regurgitating Kurtz's incredibly flawed argument. He has an agenda and he excludes rather important, relevant data to further that agenda.



The moment driving becomes a fundamental right, your line of reasoning here may have some merit. Until then, however, it does not.

Blackstone,



What are these profound consequences of which you speak? And who says that there was no real benefit to children being brought up by a mother and a father? I don't ever recall stating that at all. Again, the question relates to the legal benefits and obligations of the marriage contract. Tackle the question in that context.



How does the government fret about simply saying no to those couples that it knows can't procreate. Seems simple enough to me. You can't procreate... we know you can't procreate, you can't get married. Easy peasy. No fretting involved. I mean, a couple puts their age on an application for a marriage license, the county clerk looks at their age and says, "I'm sorry, you are too old... you won't be able to procreate, you can't get married." No fretting involved.

But again, because this is a fundamental right being implicated, the exclusion must be necessary in order to further the State's interest in procreation. This means it can't simply refuse extend it to them because it's easier not to.

You must also remember that these challenges to the law deal mainly with changes that heterosexuals made to the legal definition of marriage – which until the 1970's did not exclude same-sex couples. It was only in the absence of an implicit ban (through sodomy laws) that heterosexuals suddenly decided to explicitly exclude same-sex couples. This is why the government must prove that the exclusion is necessary. If it is not necessary to exclude them, it can't deny them the right.

And, Blackstone, we are not talking about an extension of a right, we are talking about the denial of a right. The right to marry exists... valid denials of that right must pass that strict standard of review in order to be constitutional. If, in those states that had a legal definition of marriage, that definition of marriage simply remained unchanged, same-sex marriage would be legal. Those states chose to change the legal definition in order to explicitly deny the right of marriage to same-sex couples.

lederuvdapac,



Completely untrue. For example, marriage did not become a sacrament in the Catholic Church until around 1215 AD. Governments have had regulations regarding marriage since long, long before Christ was born.



The government is unable to grant a fundamental human right. They are either able to protect it or deny it. Besides, the burden of proof falls on the government in this case. That is the way Constitutional law works.

Widespread confusion about what gender even is. It may sound ridiculous now, but same-sex "marriage" would have been considered quite a ridiculous concept not too long ago. You can't make radical changes to society's instinctive understanding of gender and pretend that nothing really important will change.


To be perfectly honest, I really didn't know for sure what you were getting at in that first question, because it wasn't worded very clearly, so I just took a stab at it. I still don't really know what you were trying to say with it.


It would have to find out which ones are and are not able to procreate, and that would involve a waste of resources for no valid reason.

And far more important than whether government knows is whether society knows. A person's medical condition is absolutely nobody's business but his or her own. It's a private matter. But gender is anything but private.


No, we're talking about a complete redefinition of it beyond what was ever contemplated up until a few years ago. I mean, I don't think the most whacked-out leftist hippie at Woodstock would have imagined such a thing, and here you are acting as though everybody should regard it as obvious or something. It's about as far from obvious as you can get. The impetus behind marriage goes right to the heart of why there's even such a thing as "male" and "female" to begin with. These things aren't just window-dressing. To deny their relevance to this whole issue is to deny reality.

Somehow allowing same-sex couples will create widespread confusion about what gender is? I don't quite follow that. I mean we already have same-sex couples... just about every adolescent in the United States knows what a same-sex couple is. Yet, there is no widespread confusion about what gender is. One would argue that homosexuality is, at it's core, a radical different to society's instinctive understanding of gender roles. Yet homosexuality has been around for thousands of years. There has been no widespread confusion among heterosexuals as to what gender is as a result. Your statement is hyperbole.



I'm trying to say that there were two questions asked in the myriad of threads dealing with this issue that are ignored by opponents of same-sex marriage. The first relates to the marriage contract and the benefits and obligations in the marriage contract as reflected in the laws. Tackle the question in that context. What other benefit is granted or obligation is imposed in the marriage contract that deals exclusively with procreation besides assumed paternity?



All it takes is a simple glance at the age of a couple on the application to determine if a couple is too old to be able to successfully procreate. You telling me that the government doesn't already look at that? I believe it does. So no additional resources are wasted.



I am not talking about your average heterosexual couple that is infertile. I'm talking about those couples that the government already knows can't procreate... no need to "find out" anything. The government knows they are sterile. No privacy issue whatsoever.



Just because it's never been recognized before is not a justification to not recognize it now. The impetus behind the creation of marriage historically... maybe. But you have to look at the right of marriage as it exists today. This is the problem. You aren't doing that. The impetus behind marriage today has changed significantly from what it started out to be. If you want to go back to that original idea of marriage, so be it, but you will be hard pressed to find anyone willing to take the steps to do so. Not since marital privacy was recognized.

You see, marriage used to be all about procreation. But then we heterosexuals decided we wanted more privacy and less government intrusion into marriage. We did away with the majority of the aspects of the marriage contract that were associated exclusively with procreation... and we're working on getting rid of the one remaining obligation (unless, of course, you can think of another)... assumed paternity. Once that is gone, there will be nothing in the marriage contract (which legally defines what marriage is in this country) that relates exclusively to procreation. The government's interest in procreation has been replaced, and more importantly in my mind, by an interest in raising children in marriage regardless of how they got there.

So no... civil marriage no longer goes to the heart of why there's such a thing as "male" and "female"... heterosexuals started removing all that stuff long ago. Civil marriage is defined by the contract. Heterosexuals changed that contract and diminished the role of procreation in marriage. To deny that is to deny reality.

And there you have it..the reason why some of these debates are a waste of time. If we don't object to gay marriage because we're bigoted homophobes that hope homosexuals die in hell by the hand of Satan himself, any other concerns/issues are "red herrings" or slippery slope arguments.

So, is this where I should say that aside from heterosexual relationships, gay couples have the patent on "loving and committed" relationships and should have special preference over any other non-child bearing class of people?

If so, I decline. Since anything else is a bogus red herring, I'm left with very little else to say.

Apart from being unproductive in this debate, your statements are also incredibly confusing: If we don't object to gay marriage, we're bigoted homophobes? What exactly are you saying? And I don't understand you're last question. Who ever stated that gay couples should have preference over other non-child bearing classes of people?

But I think people on AD believe for some strange reason that the general American public opposses Gay Marriage because of these notions. I don't believe that gay marriage opposition in the US comes from the relationship's lack of ability to procreate. I believe it's mostly because it seems weird and abnormal, and makes people uncomfortable.

What's the big deal there? Homosexuality negates the biology of human beings as a species, and surely a large cross section of the US just flat out isn't comfortable with it. I think there's a stark contrast between the notions of tolerance and acceptance.

Marriage, in the US for most people getting married ISN'T a legal matter, but moreover a staple of life and living. It's an integral part of American Culture and stretches back to our Judeo-Christian roots and cultural value of a nuclear family.

I can honestly see why a homosexual couple would want to share in marital bliss (tongue in cheek), but frankly as long as the US doesn't seem homosexuality as a mainstream notion... we might as well not even bring it up again. Most people in the US don't mind gay male hairdressers, or don't mind the idea of two attractive lesbians... heck, Will and Grace even attempted to make light of the idea. However, when it comes down to brass tax, a large portion of the US doesn't want to have them teaching their kids, working in their churches, etc. That's where I draw the line between "tolerance and acceptance". Right or wrong, it doesn't matter really.

They can't grant a right? Okay, I actually agree with you. What they do, however, is discover the existence of certain rights.

Let's take marriage. In Loving v. Virginia, the Court decided:



So the Loving court used Skinner and Maynard to decide that this is a right.

What does Skinner say?



Skinner was about the state's ability to sterilize criminals. The court ruled that the State could not due so because it would violate the criminal's basic right to procreate. Notice that by sterilizing the criminal, they take away his basic rights of not only procreation, but of marriage. In other words, the ability to procreate is viewed as a logical prerequisite of marriage.

The Maynard case involves a man who divorces his wife when she never lived in the territory granting the divorce (the Oregon territory). In it, the court refers to an earlier decision Noel v. Ewing which stated:



The Maynard court did note:


. Marriage deals with morals and civilization and has "always been subject to the control of the legislature."

So in Loving we have marriage as a basic civil right because it is "fundamental to our very existence and survival", in Skinner "marriage and procreation are fundamental to the very existence and survival of the race". Maynard affirms the legislature's right to control marriage.

Now, one common argument is to take the Loving decision and replace "race" with "sexual orientation". Notice that in Skinner, the court alludes to the fact that unchecked discrimination of enforcement (in this case, with the punishment of sterilization) could lead the government to "cause races or types which are inimical to the dominant group to wither and disappear."

However sexual orientation is not a suspect or quasi-suspect class. Therefore the question of same sex marriage is only subject to the rational basis test: the state must only demonstrate that the law is rationally related to any legitimate interest of the state. Marriage is clearly a legitimate interest of the state.

The US District Court recently upheld the Defense of Marriage Act (DOMA) on these grounds Smelt v. Orange County In its rational basis review of the DOMA:


We'll see if this decision stands up upon appeal.

EDIT: to add these links to the cases:

MAYNARD v. HILL, 125 U.S. 190 (1888)
SKINNER v. STATE OF OKLAHOMA
Loving v. VirginiaSmelt v. Orange County

It hasn't been normalized for thousands of years, and you know that perfectly well.

As for the hyperbole charge, hyperbole would have been saying as late as 15 years ago that all this "gay rights" stuff would lead to gay marriage. You'd have been dismissed as a kook for saying that back then, even by most leftists. So sorry, but that charge doesn't stick to the wall anymore.


Like I said, what's more important is whether society - that is, other ordinary people in society - knows they're able to procreate, just from glancing at them. There's no way they can know. Even an elderly couple might once have been able to procreate. And since the percentage of people getting married at such a late age is quite small (and since those marriages aren't likely to last all that long anyway, on average), there's no reason at all to set an arbitrary age limit. Let opposite-sex couples marry with as few restrictions as possible, and you'll still get a plenty big yield who'll beget families. Open it up to same-sex couples, and the yield will drop drastically.

That'll be especially true as people of the same sex begin to marry each other who aren't even homosexual, just for whatever legal and economic benefits that might result from it. Again, you can call that "hyperbole" till you're blue in the face, but this whole discussion is about eliminating taboos. And once you do that, things can take off in quite a number of unforeseen directions. Taboos exist for a reason, as we're about to find out if we continue to go down this ill-conceived path.


Privacy is not inconsistent with the goal of having marriage be for procreation. As I explained above, if government mostly kept out of it except for the one true undeniable linchpin of procreation - the whole male/female thing - then it will still largely accomplish its goal. It may even accomplish its goal better than through the old manner, in that it may encourage more men and women to get married in the first place. Opening it up to same-sex couples, however, can not possibly work in favor of that goal in the slightest, and common sense dictates that it will work very much in the opposite direction.

Just to clarify our positions here, may I ask those who answered "yes" to the first question whether they would support legislation that would deny all of the rights and benefits afforded by marriage to heterosexual couples unless and until they produce biological offspring?

I don't mind being taken to task for a response you don't agree with, but please read and comprehend what you are complaining about. The choices seems to be clear in framing this debate. We have to object based on moral/religious grounds because any other reason is a red herring.

We've beaten this topic to death. My stance is and has always been the same - if you allow gays to marry, marriage has become about people marrying people. There are other classes of society that cannot procreate that should be afforded those same rights. Gays do not have a special "right" over other members of society that should be afforded the same.

So, to respond to this and Wertz's question, I voted "yes" to the second question. It would be difficult to track who is trying to have children, had children but lost them, who is physically able to have children but are not being successful, etc. So, to keep from invading our privacy, the government assumes a married heterosexual couple will have children because statistically speaking, they will.

The easy answer is to simply kill marriage. Nobody will have any special benefit. Any issues raised by marriage such as hospital visitations, next of kin responsibilities, etc can be accommodated by simple legal means. If marriage has nothing to do with children, then this solution should not be a problem for anybody to accept.

Get rid of marriage as we know it and make it a legal arrangement for everybody. Problem solved.

And those regulations have usually involved the sanctioning of only one man and one woman being able to marry. The tradition of marriage came before Judeo-Christianity, but please do not deny the religious aspects of marriage especially since those values are the very basis of the founding of this country.



And i completely and utterly agree with you in every aspect of this statement. Your only problem lies in the assumption that marriage is a fundamental human right. Never to my knowledge has it been deemed so by the architects of Natural Law Theory. John Locke discussed the family in the Second Treatise on Civil Government and he stated that the purpose of the family was not only for procreation but the continuation of the species. Do you think that either of those two purposes fit the model for the homosexual marriage? The fact is that the only argument that you have to say that marriage IS a human right is based on the Supreme Court case that declared it as so. And Amlord, eloquently put that declaration into context. Because marriage was the prerequisite to procreation, it was necessary for the survival of the species. The government has a vested interest in seeing this through as it deals with lineage among other things. There is no interest in granting homosexual marriages because nothing can come of it. I'm not being metaphorically mean, i am stating literal fact. They cannot procreate and thus their union does not contribute to society (not saying that the people do not contribute, but the recognition of that union). Two people of the same sex who love eachother can live together without government interference for their entire lives and nobody would be the wiser. Government preventing that from happening would be a violation of their rights. But the necessity of recognizing their union is just not there. People love eachother and nothing should be prevented from that occurring, but that doesn't translate into the state legalizing homosexual marriages just because the two people love eachother.

People can gripe all they want of what marriage has turned into in the past couple decades and how that proves that it is no longer for procreation. But just because people choose not to fulfill the actual purpose of marriage doesn't mean that it is still not the purpose.

Perhaps this is merely semantics, but they don't discover rights either – they recognize or establish them as protected or denied. We have the right to do whatever we want, and the government has the ability to recognize and establish particular ones as protected or it has the ablility to deny them. Whether or not the recognition and establishment or the denial is constitutional depends on the nature of the right.



More specifically, a fundamental human right.



Actually, according to Skinner, marriage was the necessary and mandatory prerequisite of procreation. Look at the date on this case. This case was decided in 1942. Pre-Griswold, pre-repeal of sodomy laws. At the time it was basically illegal for a married couple to engage in any type of sexual activity that was not conducive to procreation. It was also illegal (and, technically, still is illegal in some states) to engage in any sexual activity outside of marriage. So, of course, in 1942 procreation was viewed as a logical pre-requisite of marriage. This is no longer the case. This is why I asked question number one.

The obligations associated with the marriage contract at the time of Skinner were these: A married couple had to allow for the possibility of procreation (no contraception, no sexual conduct that was not conducive to procreation); they had to refrain from having sex with someone outside the marriage; and the husband was legally considered the father of any children born to his wife. Add to these obligations the fact that it was illegal to engage in any sexual activity outside of marriage and you have a compelling State interest in promoting procreation in marriage. That was the state of marriage as seen by the justices in the Skinner case. Of course, they believed that the ability to procreate was a logical prerequisite to marriage. Marriage was the only situation in which one could legally procreate at all.

Where did same-sex couples fit into this concept of marriage? They didn't. They couldn't legally engage in the contract... not because they didn't fit the legal definition of who could marry – up until the early '70's that was gender neutral in every state that had a legal definition. But the State could prove that it had a compelling State interest in promoting procreation back then... there were laws to back it up. They could prove that it was necessary to exclude same-sex couples from marriage to further that interest because same-sex couples could only engage in illegal sexual activity that was not conducive to procreation; it was immediately recognizable that they would be unable to procreate; and, procreation was one of the primary aims in the government's regulation of marriage.

But civil marriage has radically changed since then. The only obligation in the contract that relates exclusively to procreation is assumed paternity – and even that is going the way of the dodo. So the elements of the marriage contract that proved the State's compelling interest have all but disappeared. The government allows married couples to use contraception; it allows them to engage in sexual activity that is not conducive to procreation; adultery – while still a grounds for divorce, has been either repealed as a crime or is not enforced; and, in an increasing number of states, it is now possible to challenge paternity in marriage. Add to this the repeal of fornication laws and marriage is no longer the necessary, mandatory prerequisite to procreation. The connection in marriage at the time of Skinner no longer exists. Procreation has become simply one of the options that allow for children to be present in a married family – one of the most used options, but an option nonetheless.

But you'll notice that Skinner says something very particular. Marriage and procreation are fundamental to the very existence of our race. Just because marriage is no longer a mandatory prerequisite to procreation is it no longer fundamental to the very existence of our race? Sure it is. As I've stated before, you can procreate until the end of the earth and not ensure the survival of the race. If you do not rear the child properly, the child dies. So here is where marriage comes in. Marriage is the ideal environment in which to raise a child because of the stable familial environment it fosters. So marriage is the ideal environment in which to raise children... something that is fundamental to our very existence. This applies to all married families... not exclusively the ones who procreate. If you adopt a child and raise it in this ideal environment, you are helping to ensure our survival as a race.



Yes, marriage has always been subject to the control of the legislature, but there are constitutional limits to that control.

So in Loving we have marriage as a basic civil right because it is "fundamental to our very existence and survival", in Skinner "marriage and procreation are fundamental to the very existence and survival of the race". Maynard affirms the legislature's right to control marriage.



I never stated that sexual orientation was a suspect or quasi-suspect class. Strict scrutiny applies when a fundamental right is implicated whether there is a suspect class or not.



This decision basically ignores legislative history over the last century. It ignores the changes to the institution of marriage that have occured in that time.

So, what is the State's true interest in marriage as it relates to children now that procreation has become simply one of the options in marriage? The State's interest in regulating marriage is to promote a stable familial environment that is ideal for the successful raising of children.

Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?

Might I simply object to your use of "exclusively"? To be of benefit to any child[ren], the obligation or benefit need not be exclusive. More specifically, section 572-24 of the Hawaii Revised Statutes provides, in pertinent part:

"Both spouses of a marriage...shall be bound to maintain, provide for, and support one another during marriage, and shall be liable for all debts contracted by one another for necessaries for themselves, one another, or their family during marriage..."

See that word "family"? The use of "family" assumes children, since the statute already concerns itself with the provision of necessaries for the other and for themselves.

And then upon any dissolution of marriage, pursuant to section 580-47(a) of the Hawaii Revised Statutes:

"Upon granting a divorce, or thereafter, if, in addition to the powers granted in subsections © and (d), jurisdiction of those matters is reserved under the decree by agreement of both parties or by order of court after finding that good cause exists, the court may make any further orders as shall appear just and equitable...(2) compelling either party to provide for the support and maintenance of the other party..."

For the obvious reason, a party to a paternity action cannot get an award of spousal support. Now posit the scenario wherein the custodial parent is receiving child support from the non-custodial parent, calculated per the state's applicable child support guidelines. Now posit the further scenario that while such child support may be adequate for the child, the custodial parent is not otherwise earning enough to meet her/his own needs. Where do you think the money to meet the needs of necessity will come from? The child support being paid by the non-custodial parent? And maybe we avoid that scenario by allowing marriage, providing for its dissolution, and providing for spousal support so that the parent requesting the same might receive such an award and not have to raid the child's support monies? And how do we know to a veritable certainty that such was on the minds of some? Well, to continue with subsection (a) of HRS 580-47:

"In addition to any other relevant factors considered, the court, in ordering spousal support and maintenance, shall consider the following factors:
***
(10) Custodial and child support responsibilities."



If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unable to procreate? If so, why?

I already answered this question on that other thread. But, again, how does the government know that a couple cannot procreate? And let me ask you this question, how many persons marry another when he/she knows that the other is, as it were, irreversibly infertile? But more to the point, how old is too old? Please see:

http://news.bbc.co.uk/1/hi/health/4114486.stm

So, with regard to determining just which of the older ones among us are infertile, such is apparently not as easy as you claimed it was. And please note that 66 year old woman from Romania.

And speaking of avoiding, you yourself have avoided some points, the primary one being, as has long been recognized, or should I say, as has been black letter law going back to Blackstone, the state is almost never required to create or make its classifications such that all coming within the purpose of the legislation are on one side and all who don't are on the other.

And, lastly, you otherwise make a rather fatal error. You have said that we have no more laws against adultery, Texas' sodomy statute was struck down, the divorce rate is 50%, etc. Fine, but who cares? Is the claim that because marriage is falling apart that you be allowed to take the wrecking ball to it in order to finish the job? The state doesn't exist merely to codify the downward trend, rather it exists to set a standard that we might rise up to and achieve.

And here is the future that you propose, and also why we have marriage benefits, and also why they should not be extended to homosexual couples:

http://www.npr.org/templates/story/story.php?storyId=5041388
http://sfgate.com/cgi-bin/article.cgi?f=/c...MNG1HJ48O81.DTL
http://www.beyondchron.org/news/index.php?itemid=346

From that middle link:

"Newsom is also trying to spread the word that San Francisco has taken significant steps to entice local families to stay by increasing its child care subsidies, phasing in free preschool for all, providing low-cost health insurance for young people, upgrading libraries, improving parks, and increasing the city's financial contribution to public schools."

From that third or last link:

"Jim Fabris, CEO of the SF Association of Realtors, described the new 15000 units as "an unprecedented opportunity for families." He added that HOME 15/5 will "help our families to live, raise children and put down roots in our city by making housing opportunity more readily available."

Unfortunately, families with children in San Francisco are even less able to purchase housing than single adults and childless couples. HOME 15/5 not only does little for "our" families, but unless current inclusionary housing priorities are changed, the housing boon will only speed up the exodus of families with children from San Francisco."

Do you have kids? Do you know how much it costs to raise kids? And to answer your question about why the state give those benefits to people who don't have kids, the answer is, we are trying to make it so that they will have kids [such allows them to save the money they will need to have and raise the little one[s]]. And homosexual couples only add to the problem, since two can live cheaper than one, as we all know, but since they can't and otherwise largely don't have kids, homosexuals don't spend their money on kids and so have just that much more to spend on housing, and so the price of housing goes through the proverbial roof and next thing we know, San Francisco is an almost childless city. And your solution to all of this is to give homosexual couples all of those benefits, and so they will then have even that much more money to spend on that 800 sq.ft. condo [now going for about $700K] and thus drive up the cost of real estate even further, thereby making S.F. even that much more childless. Now, to ask the rather obvious question, does the state have a legitimate and/or compelling interest in ensuring that its cities are not childless? And before you answer, simply consider that we've already said that it was okay to have busing and forced integration, so I suppose that the state could simply say that it is giving married heterosexuals the benefits some others so much desire as a means of ensuring that its cities are wholly integrated.

Oh, sorry, one more. To answer your question re sexual deviancy. I disagree with the argument that all sexual deviancy is the same, and so I don't lump in homosexuals with bigamists and those practicing incest. However, while I don't do any lumping in, all three are nevertheless deviant sexual behaviors.

Well, exclusively was not my word, it was the word of the individual claiming that all the obligations and benefits associated with the marriage contract related exclusively to procreation. I would talk to hayleyanne about that one, as she was the person making that claim. My question is a challenge to that claim. The only benefit and obligation that relates exclusively to procreation is assumed paternity... and that one is going away.



You so did not answer this question in the other thread which is why I started this one.



Well, let's see... if the government requires a couple to prove it is unable to procreate before allowing them to marry, does the government know that the couple can't procreate? I think the answer to that question is obvious.



As I've already stated, there is not a single clinic in this country that will perform IVF on a woman over, say, 50. If you can find one, please let me know. As for the genetic treatment... when that happens and the first 90 year old woman gives birth naturally... huzzah! That will get rid of the age argument. But, until it does, it is impossible for a 90 year old woman to give birth, it has never happened. This does not, however, negate the whole government mandated sterilization, nor does it negate the rubella testing issue in which the government would allow you to bypass a pre-marriage rubella test if you could prove that you were unable to procreate.



I don't know. I do, however, know a couple who got married knowing that she was infertile. They adopted a lovely child. You should also note that before no fault divorce came into being, unless there was fraud involved, a man could not leave his wife because she was infertile.



I have not avoided this at all. Constitutional law is clear. When a government makes an explicit exclusion involving a fundamental right, the State must prove that the exclusion is related to